Can CPS Terminate Parental Rights Based on Old Events?

Mar 25, 2024 | Child Protective Services, Family Law

As always, I can give advice only about cases pending under Texas law, since I am licensed within only that state. CPS in other states may be similar or dissimilar to Texas CPS

The Department of Family and Protective Services (of which CPS is a part) states in their publications that:

“(w)e promote safe and healthy families and protect children and vulnerable adults from abuse, neglect, and exploitation.

…

Values

Accountable: We act with a sense of urgency to deliver results in an accountable, ethical, and transparent manner.

Respectful: We recognize the value of each person and act timely, value privacy, and treat all with respect.”[1]

In light of those express commitments to act “urgently,” and “timely,” we might expect that if CPS had concern(S) about the safety and welfare of children, then they would focus on recent events involving those children. In our experience, however, that is not always the case.[2]

Our courts have held that allegations of abuse or neglect against a parent must not be too remote in time, if termination of parental rights is sought because of that behavior. And, if you think about it, that makes sense: something that a parent did or did not do years ago does not bear strongly on a child’s current living circumstances. Put another way, “termination proceedings should be based on facts that are fresh enough to apply to the children at the time of the trial.”[3]

Texas CPS has to show not only some act of abuse or neglect by the parent, but also, that the termination is in the current “best interest” of the child. So, something that happened long ago does not provide solid evidence of what is currently in a child’s best interest. Things change over time; kids mature, and their needs change.

So, what are some examples of time periods that our courts have found to be too long past (remote) to support a current termination of parental rights? Well, in our research we have learned that our (Texas) courts have, so far, not defined that time period precisely. They have, however, determined in one case that that five (5) years between the act of abuse or neglect, and the termination trial, was too long. Another Texas court has held that three (3) years was too remote to support a termination finding.

Consistent with those cases, the Texas legislature has enacted legislation in Texas which requires generally (as with most things dictated by a law, there are exceptions to the general rule) that termination cases end within one year of when they are begun. But, of course, even if they meet that standard, the acts of abuse or neglect may still be found by a court to be too remote if the case was not started until a long time after the incident(s) occurred.

So, CPS should investigate a case soon enough after alleged abuse or neglect occurs; and, begin and complete their legal case timely. The burden of accomplishing those things fall on CPS, and not on the parents.

As with most legal matters, it is important to consult with an attorney for legal advice as soon as possible. Once a case has been filed, you may be entitled to have legal counsel appointed for you.

As always, we wish you the best, and hope that all kids are treated with love and respect.

Until next time, please take care of yourself and your loved ones!

 

Best regards,

 

David

 

[1][1] Texas Child Protective Services Handbook,” Section 1110

 

[2] Granted that some things, such as our government’s response to a pandemic, is out of the control of CPS

[3] This language is from a brief that we prepared and filed

 

 

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Important Factors in Cases Requesting Protective Orders

Nov 1, 2023 | Child Custody, Child Protective Services

Introduction:

A protective order is a court order that can be entered by the court to protect a victim of domestic violence, assault (sexual or otherwise), abuse, stalking, and/or threats by a family member, household member, or (current or former) dating partner. We have written more about these cases here: Legal Protections for Family Violence (Part 1) and here Legal Protections Available for Family Violence. A review of those posts provides context for this one. Today, we will discuss some of the considerations that are pertinent to these types of cases.

Discussion:

Cases in which Family Violence has been alleged by one partner against another raise issues that are not usually present in other types of cases; issues such as (often) a lack of witnesses who might corroborate or dispute the allegations; sometimes, either a lack of physical evidence, or evidence which is ambiguous, such as whether physical marks, bruises, scratches, and so on are “defensive,” i.e. were inflicted by a person trying to protect themselves, or were caused by an event unrelated to an encounter between the parties; or, even whether they were self-inflicted. So, it is important for the person requesting the Protective Order, as well as the person who is alleged to have committed Family Violence, to focus on the details of the case. These cases are not ones “to wing,” or to do “off the cuff.”

As discussed in the first article linked above [“Legal Protections for Family Violence (Part 1)], Texas has provisions for Emergency Protective Orders, which are typically granted upon the arrest of a person for a Family Violence crime (such as Domestic Assault), and usually last for sixty-one (61) days. Those are granted without a hearing, based solely on the arrest documentation provided by the police department. Those relatively short-lived cases are not what this post is addressing. Instead, it’s the potentially much longer Protective Orders that can be granted by a District Court, after application and hearing, that we are focusing on today (these cases are discussed within the second article linked above, (“Legal Protections Available for Family Violence”).

The investigation of the legal case (for both parties) typically begins with the police report (“Incident Report”). In Texas, the Application for Protective Order will almost certainly contain a report from one or more law enforcement officer who investigated the incident. The details of this report are important, and if they don’t align with other case materials, such as medical reports, witness statements, photographs, audio/visual recordings (and so on), then those details are suspect, and can be questioned. A skilled lawyer, defending the person against whom the allegations are made, will point-out those discrepancies to the court, so as to cast doubt on the reported incident of Family Violence. And, a skilled lawyer prosecuting the case will address and explain those discrepancies (to the extent that can be done) before the defense lawyer has the opportunity to exploit them.  Details, and explanations of variances within those details, are important.

Next, any witnesses who might either support or refute the case allegations should be approached, and, if possible, interviewed. If a witness refuses to speak with either lawyer, then that lawyer should be sure to provide evidence that the witness seemed to be favoring one party’s ability to investigate the case, instead of providing truthful information to everyone who sought it. This raises the issue of the impartiality of the witness.

How do the witness statements compare to the statement given by the person claiming to be the victim? If there are more than one witness, do they agree with one another on all important details? Do the witness statements conform with the officer’s report, and with the physical evidence, visual/audio recordings, photographs, etc.? Are there reasonable explanations for the variances? Is there evidence that witnesses discussed the events in question with one another, to arrive at a consensus narrative?

I next want to know whether the person making the claims in the case sought medical treatment. If so, was there a diagnosis made? Is there a medical report confirming that the wounds, marks, etc. are consistent (or inconsistent) with the patient history (what the patient told the health care provider)? When this information exists, it is often helpful to one side or the other. Consequently, both sides need to be aware of its existence.

Finally, I want to see how the parties communicated with one another running up to their important encounters, and whether they communicated afterwards. I expect to find a text string between the parties when I get one of these cases. What did they say to one another before, during, and after the event(s) in question? This is often quite helpful in determining what likely did, or did not, occur between them.

Protective Order cases can have a significant impact on both parties. And so, I encourage everyone involved in one to take it seriously. The court wants to grant a Protective Order when appropriate, but not grant one when not proper. Our job is to help the court see what is right in this particular case.

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Keeping Children Safe

Jun 22, 2023 | Child Custody, Child Protective Services

Deciding to divorce is a big decision. Once it has been made, proper preparation is, like with so many things in life, a key to making the outcome more likely to be positive for you and your family. And, yet, because it can be such an emotional decision, many people do not develop a plan for successfully moving through the process. This piece is designed to guide you in developing that plan.

Initially, it is important to go through this process before beginning the divorce. That is when issues can be pondered without having the pressure of a pending divorce affecting your decision-making

Step 1 Who will be your allies during this process? Divorce can be emotionally-taxing. One or both spouses may make emotional decisions that create chaos, confusion, or worse. It is easier to get through those times with allies—family members and friends who can provide support. It is also important to have people who you can talk to regularly; esp. if other family members and friends decide to not be there for you at this time. Having the support of allies help you to better weather the storms of your case.

Step 2 Do you understand the property matters? Do you have, or can you get, documentation (hard copy and/or virtual) pertaining to all debts and assets of the family? Car titles, mortgage statements, retirement and brokerage account statements, bank or credit union statements, loan applications, credit card bills, health and life insurance policies, and tax returns are all important to have. Do you know where to obtain any of those documents which you do not already have? Is there anyone who can assist you with this process? Be sure to store electronic versions of those documents in the cloud (such as via OneDrive, Dropbox, Google Drive, or Box), so that you can access them from anywhere that you have an internet connection

Step 3 Who provides services to the home? You should either know, or learn, the identity of the gas company, the electricity provider, and the cable or satellite provider, for the home. Are there other service providers that your family uses, such as for landscaping, lawn maintenance, or babysitting? Do you know how all of those bills are customarily paid? What about the water/trash bill for your home? Do you either have access to that information, or can you get it? In a similar vein do you know all about your family’s health insurance, toll tag, phone, and other accounts? Can you compile all of this information in a document that you can access online?

Step 4 How will you meet financial obligations during the divorce? In addition to your living expenses, there will be additional charges related just to the divorce process, itself. So, securing a means to pay those expenses allows one to continue the case, rather than perhaps being forced to settle on less-than-favorable terms because you’ve run-out of money. The court may award certain bills, support, or alimony during the case. But, that is uncertain until it happens. Funding is sometimes available by taking a loan against a retirement account; selling some securities in a brokerage account; securing one or more credit cards in your own name, and unknown to your spouse, ideally; or opening-up a line of credit with a financial institution. Also, do you have a relative who will loan you money, or who will allow you to use his or her credit card? Is there home equity available to borrow? Even if the house is owned by both of you, the court may allow that home equity to be used to pay the expenses of the case.

These are the first few considerations. We will address more of them with the next post, so check back for more useful info!

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Protecting Children When a Parent Has a Substance Abuse Disorder

Jan 18, 2023 | Child Custody, Child Protective Services

According to the National Institute of Mental Health, “A substance use disorder (SUD) is a mental disorder that affects a person’s brain and behavior, leading to a person’s inability to control their use of substances such as legal or illegal drugs, alcohol, or medications. Symptoms can range from moderate to severe, with addiction being the most severe form of SUDs.”[1] When a parent has a SUD, the parent-child dynamic is always affected to some degree.

In fact, research studies indicate that the children in these situations have an “ elevated risk that children of substance abusing parents face in general for poorer academic functioning; emotional, behavioral, and social problems; and an earlier onset of substance use, faster acceleration in substance use patterns, and higher rates of alcohol and drug use disorders.”[2]

So, obviously, this is an important issue in child custody cases, with or without an accompanying divorce. What are some of the ways that courts address these situations? That is the subject of today’ blog post.

Protecting children from the adverse effects discussed above is the primary goal of the courts in these situations. And, it should be the primary goal of both parents. The issue that typically arises first is a recognition of the problem by both parents. The parent having the SDU often will not recognize that his/her substance abuse is, indeed, a problem for the children. That parent may defensively opine that the “real problem” is with the other parent, who is “too uptight,” or who “just needs to relax (or chill).”

If that SUD remains unrecognized by that parent, then a court order will, likely, be required, to put into place protective measures. Those measures may include: limiting the possession (“visitation”) time of the parent abusing the substance(s). If, for example, that parent has a habit of drinking alcohol in excess during the evening and night hours, then his or her right to possession of the children may be limited to daytime hours. Or, if a parent smokes marijuana on weekends, then his or her possession rights may be limited to just weekday periods. Texas courts have broad authority, and indeed, an express duty, to enter orders that both protect children, and that are in the best interest of those children who come before them.

In the case where the parent having the SUD apparently addresses the problem, by refraining from using those substances previously abused by him or her, the other parent and the court may want to be able to confirm that the person is remaining clean and sober. And so, drug tests may be ordered.[3] If the substance being abused was alcohol, then the court may order that the parent with the problem subscribe to a service that provides a pocket-sized alcohol testing device. Times can be set for testing, such as: 30 minutes prior to the beginning of the parent’s possession period; 2 hours after the possession period begins; early the next morning (if the visit is overnight). Additionally, the right to random testing requests by the other parent may be ordered.

The goal of providing structure to these possession periods is not to “punish” a parent. Instead, it is to work towards providing a safer environment for children. After all, isn’t that the most important issue?

Until next time, keep on loving the kids in your life!

~David

 

[1] https://www.nimh.nih.gov/health/topics/substance-use-and-mental-health#:~:text=A%20substance%20use%20disorder%20(SUD,most%20severe%20form%20of%20SUDs.

[2] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3676900/

[3] Urine, hair, and nail tests are currently used in the jurisdictions where I practice law. This series of tests gives a broad picture of use, both recently and over the course of the past few months.

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Can CPS Remove Your Child from YOU Because of What The Other Parent Has Done?

Jul 22, 2019 | Child Protective Services, Family Law

Child Protection Services (CPS) exists, and is often needed, to protect children from abuse or neglect. When it is not safe for a child to live with a parent, then we, as a society, need to have the ability to protect those children, by removing them from their homes, and placing them somewhere safe. That is our law. When only parent is the problem, however, the application of that law to the innocent parent can be unfair.

As background to the problem, Texas law provides that when CPS removes a child from a parent, either with or without a court order , the child’s parents are entitled to appear before the court to contest that removal (usually within 14 days of the removal). This proceeding is called an “Adversary Hearing.” If, after the Adversary hearing is conducted, the court upholds the removal of the child, then that court will typically order the parents to participate in, and complete, certain specific services related to the reason that the child was removed; like counseling, drug and alcohol assessments, psychological evaluations, random drug testing, parenting classes, and so on.

A problem can arise when the court upholds the removal of the child, but only one parent is responsible for that removal. Texas law allows the court to order both parents, including the “non-offending”(innocent) parent to complete services, like those discussed above. In my experience, that is what usually happens after an Adversary Hearing. Importantly, if either parent fails to complete those services, then the court could terminate that parent’s parental rights, even if that parent is innocent and was not at all responsible for the child’s unsafe environment. So, if, for example, Mom is using drugs with her boyfriend in the home with the children, and CPS receives a report about that circumstance, CPS can remove the children from Mom’s home; the court can uphold that removal, and order both Mom and Dad (who was not using drugs) to complete a list of services. If Dad is unable to work his schedule so that he can spend four (4) hours with a psychologist being evaluated; attend counseling, submit to random drug tests, and so on, then the court could terminate his rights to his kids; even though he is a non-offending (innocent) parent.

Because of this problem, there was a bill proposed in the Texas house of Representatives, during 2019: the Child Trauma Prevention Act (House Bill 3331), which would have addressed this situation. Unfortunately, that bill did not become law. Consequently, the problem described in this article still exists, as of the time of this writing. Anyone interested in working to address this situation should contact” their representatives in the Texas House of Representatives, and Texas Senate; the Texas Home School Coalition Association; or, the Texas Public Policy Foundation (TPPF).

1 In an emergency situation, CPS can remove children from an unsafe place before presenting evidence to a court to obtain an Order authorizing the removal. Otherwise, a court order is required prior to removal.
2 By finding that “there was a danger to the physical health or safety of the child…which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child” TFC  262.201 (g) (1); also, that “the urgent need for protection required the immediate removal of the child and reasonable efforts , consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child’s removal; and” TFC  262.201 (g) (2) “reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.” TFC  262.201 (g) (3).
3 The bill passed the House committee with no witnesses testifying against it. However, the bill died in the House Calendars Committee because an unknown member of the committee stalled the bill until it died on a deadline.

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Legal Protections Available for Family Violence

Nov 23, 2017 | Child Custody, Child Protective Services, Family Law

Last month, we started this conversation by discussing the Court Orders that are immediately available to victims of Family Violence; some, even before the Protective Order case has been filed. Those orders are designed to offer legal protection to victims right away, before there is time for proper notice and a hearing to occur. This is, obviously, very important, so all of that information is available here. With those immediate protections in place, we can now look to what happens next.

Starting the Protective Order Case

The case is initiated by the filing of an Application for Protective Order (by or for “the applicant’). Upon that filing, a Temporary Ex Parte Protective Order can be requested to offer immediate protection to the applicant; and, the Court is required to schedule an evidentiary hearing. In most Texas counties, that hearing must be set to occur within fourteen (14) days of the filing of the Application for Protective Order. In very large, or very rural counties, however, that hearing can be scheduled to occur as many as twenty (20) days after the Application is filed. Importantly, if obtained, the Temporary Ex Parte Protective Order should be in effect up to the date of the hearing.

The Protective Order Hearing

The Protective Order hearing is a trial. As such, the parties, and any other witnesses, can be called to provide testimony. That testimony will be about the allegations made within the Application for Protective Order filed by the applicant. Importantly, any witness called to testify at the hearing may be cross-examined by any other party to the case. And, usually, the witnesses will not be allowed to hear the testimony of the other witnesses, nor to discuss testimony with other witnesses, so that their respective testimonies will not be influenced by what they would hear other witnesses testify to at the hearing (at least, that will be the case if your lawyer makes a proper request to the court for sequestration of the witnesses).

Other Evidence Considered by the Court

In addition to witness testimony, relevant photographs, recordings, documents (such as medical, or police, reports), and other relevant evidence can be introduced as evidence (caution: each of these types of demonstrative evidence requires sufficient evidentiary predicate in order to be admissible over the objection of another party to the case, so it will be necessary to coordinate those foundations with your lawyer ahead of time). In addition to the evidence introduced by the parties, the Presiding Judge may ask questions to clarify what happened between the parties to the case.

 The Court’s Judgment

After all of the evidence and argument has been presented, and any questions posed by the Judge have ben answered, the court will make findings about: the nature of the relationship that exists between the parties to the case; whether the Respondent committed “Family Violence;” and, if Family Violence did occur, is it likely to occur in the future? Based on all of those findings, the court will either grant the requested Protective Order, or deny the request for that Order.

Conclusion

Family Violence is a serious matter, and our courts treat allegations of Family Violence quite seriously. Whether you are a victim of such violence, or one who stands accused of committing Family Violence, it is important that you take the case seriously, since its outcome will have serious effects.

Divorce

When Family Violence occurs in a marriage, divorce often follows, or is threatened. If you feel that may be the case with you, then you should learn how to get prepared for a divorce case.

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